I several philosophical problems with software patents, and so I'm against
the RAND alterations to W3C policy. IMHO, the premise of owning ideas and
describing it as property (which infers limited availability and scarcity)
is insane. But instead of arguing that legal matter, let me focus on your
proposed changes.
--Let's start with "non-discriminatory"
I read in "2.2 Workgroup Group Response: Points of Consensus and Areas for
Further Work", there is no consensus on whether patents are appropriate for
web standards. So one consensus point is "One patent licensing framework
may not be appropriate to every W3C Working Group." So you offer
"royalty-free" and "reasonable and non-discriminatory" terms.
Seems reasonable until you get to implementation, which in 8.2 states:
"Implementers may decline the terms offered by the Contributor and, as in
all cases, have the option of negotiating a license for the Essential Claims
held by the Contributor on different terms." So it's offered on a
non-discriminatory basis unless they can negotiate something else...that
doesn't sound non-discriminatory to me. I'm sure IBM will be able to
negotiate something /much/ better than I.
This document's attempt to characterize this policy change as the W3C
offering its standards on a "reasonable and non-discriminatory terms"
fails. After realizing this and re-reading the document, I believe this
policy change is really just a measure to protect the W3C from legal
challenges arising from patent infringement (most likely from its own
members). A classic institutional manuever used by the IEEE and other
standards bodies.
For the W3C commercial members, this is a financial wind fall (as are all
the intellectual property laws). For those non-commercial activities,
you've just been excluded from the party.
-- Then there's patent law's limited reach vs. the web's infinite reach
Patents are localized to national or multi-national boundaries. (See the
related FAQ on this proposal for details.) The web is global in scale.
Writing software doesn't require enormous amounts of resources that
manufacturing, telecom, and broadcasting require -- just a PC and an
Internet connection. How do you enforce a patent in a country where patents
aren't recognized?
If a non-commercial effort is adversely affected by the patent infringement
discussed above, what should they do? Move to a country without patent law?
If you download that software and use it in a patent observing country, are
you in violation of the patent (even though you may only have a binary that
makes no mention of the patent)? What happens if you include it in a
product? You can see how fast this can get out of control. It's the same
basic problem with the US preventing export of strong encryption products --
it just forces that work offshore.
-- What else can W3C do?
The W3C is stuck. If they don't somehow recognize patents, they're bound to
run afoul of them sooner or later. Yet, most of their supporters (at least
in spirit if not financial) have historically been individuals from
academia, open source (including the FSF), and technical experts from around
the world.
Now, with their corporate membership growing, their urged to make a policy
change to deal with patent law that's sugar coated to passify the casual
observer or at least be off the radar.
-- In Closing
I sympathize with the W3C, but what can they do when everyone thinks
everything should be driven by money? If anything the US should have
learned recently, it's that money isn't everything.
Please don't approve this policy change. Figure some other way to deal with
patent infringement.
-Toby Meehan